Solicitor

Dangerous Driving and Ex Turpi Causa

In the recent case of Wallett & Ors v.Vickers, Mr Justice Males considered that the Recorder had erred in dismissing the claim on the basis of ex turpi causa. This is a legal doctrine which states that a claimant cannot succeed in a claim if it arises in connection with his own illegal act.

The claim was for damages (under the Fatal Accidents Act 1976) following a road traffic accident where the claimant’s partner had been killed when trying to outrace the defendant driver. The defendant driver was found guilty of dangerous driving.

At trial, before the Recorder, the claimant’s case was dismissed and the defence of ex turpi causa was accepted since the deceased and the defendant had been involved in a criminal joint enterprise of dangerous driving on a public road.

The claimant appealed “contending that a criminal joint enterprise requires not only encouragement or assistance by one defendant in the commission of an offence by the other, but also an intention to encourage or assist, and that there was no valid basis on which the Recorder could conclude that the deceased intended to encourage the defendant to drive dangerously.”

Mr Justice Males allowed the claimant’s appeal after considering:- “What did the Recorder actually decide about the deceased’s intention? If he decided that the deceased intended to encourage the defendant to drive dangerously, was that a finding which he was entitled to make?”

Unfortunately, although the Recorder said that there was sufficient evidence to determine the intention of the parties, he did not spell out what he found the parties’ (and in particular the deceased’s) intention to be. This may have been because of his mistaken view that the issue of intention was only an additional point rather than an essential element in determining whether there was a criminal joint enterprise at all. At all events, there is no finding here of what the deceased’s intention was.

It seems probable from the Recorder’s reference to “the last of the Claimant’s points” that he intended to refer back to his earlier description of the claimant’s case on intention. He dealt with that at [21] of the judgment, describing “an additional limb of the Claimant’s submissions, to the effect that even if ex turpi did apply and there had been a joint enterprise, then there was insufficient evidence to suggest that there was any intention that the deceased and the defendant engaged in any common goal”. Unfortunately, and without wishing to be unkind to an extempore judgment, that was not an accurate description of the claimant’s case, which as already explained was that the mental element was an essential element of any criminal joint enterprise. Moreover, the Recorder did not say what he understood that the parties’ common goal was, let alone that the deceased intended to encourage the defendant to drive dangerously.

The result, therefore, is that there is no express finding in the judgment that the necessary mental element for the deceased’s accessory liability to the defendant’s dangerous driving had been proved.

The Recorder did use the language of racing, as did some of the eyewitnesses to the incident. He adopted the description of the sentencing judge in the criminal proceedings against the defendant, who had described the driving as “Two men, not yielding to each other, side-by-side, driving at speeds approximately double the legal speed limit”. He referred also at [14] to “what almost appears a drag race-style mentality”. Mr Horlock founded on this language to submit that, if the deceased intended to race, he must have intended to have somebody to race against, and therefore intended the defendant to drive at racing speed. In my judgment, that is to read much more into the terminology of racing than the language can properly bear.

It seems highly probable that what the Recorder understood by racing and by referring to a common goal was merely that each of the two drivers intended to be the first to reach the point where the road narrowed. No doubt that is true, but that is not a common purpose or intent in the sense in which that phrase is used in the law of criminal joint enterprise. Rather than working together or encouraging each other to achieve a shared objective, each man was seeking to achieve his own objective which would necessarily mean frustrating the other. Far from wishing the other to drive dangerously, it seems highly probable that each would have preferred that the other should slow down and give way. I would acknowledge that intention and desire are not necessarily the same thing (see Jogeeat [91]) but there is no basis here for any finding that the deceased intended to encourage the defendant to drive dangerously.

In my judgment, therefore, the most that can be said is that each man intended to drive in a way which would beat the other to the point where the road narrowed. In relation to an incident that lasted only seconds, that is as far as it is possible to go. Although the Recorder found that this had the effect of encouraging the other to drive dangerously, I conclude that he did not make a finding that this was what the deceased intended and, moreover, that if he had done so such a finding would not have been justified.

It follows that the Recorder’s finding of a criminal joint enterprise cannot stand and that the appeal must be allowed.